Miscally v. Colonial Stores

• Citation: 23 S.E.2d 860,68 Ga.App. 729
• Decision Date: 06 January 1943
• Docket Number: 29797.
• Parties: MISCALLY v. COLONIAL STORES, Inc.
• Court: Georgia Court of Appeals

23 S.E.2d 860

68 Ga.App. 729

MISCALLY v. COLONIAL STORES, Inc.

No. 29797.

Court of Appeals of Georgia, Division No. 1.

January 6, 1943

Sarah Miscally sued Colonial Stores, Inc. for damages for an injury which she had received from a fall due to the alleged negligence of the defendant. At the conclusion of the plaintiff's testimony a nonsuit was granted. During the trial certain evidence was excluded over objection of the defendant. The case is here on a direct bill of exceptions alleging error (a) in the exclusion of the testimony, and (b) in the judgment of nonsuit.

Aside from evidence to sustain the extent of the injury the evidence as to how such injury occurred is substantially as follows: "I did not see anything on the floor that attracted my attention particularly to where I fell. I always took reasonable care in looking at the floor, and looking ahead to see that everything was clear, and I didn't see this or distinguish it from the condition of the floor. I stepped on something, and I saw afterwards what I stepped on because I carried a little portion of it with me. I went on to the line of where my foot skidded. As to whether or not it was on my shoe, there was a place on the heel of my shoe when I got home, but I had walked across a parking lot, so there was not much on my shoe *** I said, 'Mr. Lassiter, this is important, you will have to come;' so he excused himself to the people and came over to me, and I told Mr. Lassiter I had slipped down and to see what I had slipped on. He picked it up and I said, 'It looks like a lettuce leaf.' He said, 'I can't tell whether it is a lettuce leaf or a cabbage leaf.' * * It was more than a mashed leaf; it was mashed and it was very dirty. You could not tell whether it was green or what color it was. In my opinion it looked like it was dirty and that it had been a white leaf. I just can't tell exactly whether it was round or square. I don't think I could say it was round or square. It was kind of a broken leaf. It was about two and one-half inches across. This Big Star is one of the self-serving stores where you go in and wait on yourself. They do have clerks there to assist you in various ways. Customers in the produce department where vegetables are kept can wait on themselves in certain things, and in certain things they can't. Things that have to be bagged, you have to wait on somebody to deal with you. When you select cabbage heads you go to the produce department and select the merchandise. As to who bags them, with a head of cabbage or bunch of carrots or anything like that, you give them to the clerk. When you are buying cabbage you don't always let the clerk pick it out, but you sometimes pick it out when it is what you want. Where I slipped is right adjacent to the produce, where they were selling fresh vegetables. *** My left foot slid quite some distance when I slipped. As to which way it slipped, in the excitement I don't think I could tell you that. I could not tell you exactly, but it slipped a foot or two *** I imagine that my foot slipped more than a foot or two. It seemed to me that I was going all over the store, but I don't know just how far it was. I know I felt those things against my foot when I first slipped and I tried to get up and leaned on this side and when I tried to lean on that arm it was way under me and I went down on this knee." The evidence further reveals that the plaintiff was a customer of defendant, who conducted a large retail grocery store. That before the vegetables were displayed they were prepared in another room where decayed and discolored leaves were removed.

Powell, Goldstein, Frazer & Murphy and Newell Edenfield, all of Atlanta, for plaintiff in error.

Bryan, Carter & Ansley, of Atlanta, for defendant in error.

GARDNER Judge.

During the progress of the trial the plaintiff offered to testify "It was very dirty and had the appearance of having been walked over, under foot." Counsel for defendant objected to this testimony as calling for an opinion of the witness. The judge ruled: "She can describe its looks, but not give an opinion about it. I will exclude her opinion. Let her describe what it was. She can give a description of what it was." Thereafter the witness, as to this phase, testified "It was more than a mashed leaf. It was mashed and it was very dirty. You could not tell whether it was green or what color it was." As we view the case, we can with propriety concede but need not decide whether the ruling was error. Such would make no material difference in the law which would apply under the facts of this case. Let us then consider the excluded testimony as a part of the evidence.

There is no evidence to charge the defendant with actual knowledge of the presence of the vegetable leaf upon the floor. Therefore we must look to see whether the evidence was sufficient to charge the defendant with constructive knowledge. There is no question but what constructive knowledge may be based on inferences drawn from the evidence but the question in this case is whether the inferences which the law...